If you are considering whether you need to establish a conservatorship, you aren’t alone. Many people have loved ones who may be in need of regular, formalized assistance with their affairs. There are pros and cons to establishing a conservatorship in California. There are also many alternatives that may be more appropriate for your loved one’s situation. Discuss your options with your elder law attorney before making a decision.
What is a conservator?
A conservator is someone appointed by the court to assist someone else who has become incapacitated, for any number of reasons. Courts always have very broad discretion in deciding who to appoint as a conservator. The most common choices are spouses and adult children. In certain special situations, an independent professional, like an attorney or accountant may be a better choice.
What does the conservator do?
The conservator is ultimately responsible for supervising the personal, financial or medical matters for the benefit of the “conservatee.” The level of responsible depends on the needs of each conservator. Termination of a conservatorship requires court action. So, before you take on this important task or determine whether a conservatorship is even needed, you should know some of the advantages and disadvantages of a conservatorship.
The pros of establishing a Conservatorship in California
One of the primary advantages of a conservatorship is that the court maintains supervision and control over the conservator throughout the entire process. This continuous supervision provides significant protection for the conservatee. The most important decisions must be made with court permission. A common example would be when a conservator must decide whether to withhold life-saving medical treatment. In that situation, the conservator is required to file a petition with the court to obtain written permission. Court supervision also serves to minimize mismanagement of funds.
The cons of establishing a Conservatorship in California
One disadvantage of a conservatorship is the cost. Court supervision is somewhat of a two-edged sword. Supervision provides better protection, but it also increases the cost. Since the court remains involved in the proceedings after the conservatorship has been established, the costs can be significant. Another disadvantage is that the conservatorship proceedings are public so the nature of the conservatee’s assets incapacity are public record and may cause embarrassment for some. The biggest disadvantage for most is the fact that appointing a conservator effectively takes away the conservatee’s autonomy. They are essentially stripped of the ability to make their own decisions about many things. This can be humiliating.
Less restrictive alternatives are available
The good news is that there are some less restrictive alternatives to consider. Some common alternatives include advance health care directives, durable powers of attorney for finances and/or healthcare, and revocable living trusts. Which option is best for you and your loved one depends on whether the ability to comprehend and communicate is still intact. There are different alternatives for those adults who are no longer able to understand or communicate.
Options for adults who are still competent
If your loved one is still able to comprehend and communicate, there are several alternatives to conservatorship that may be available. When it comes to financial matters, you can set up a joint bank account to allow access to those funds. You can also execute a general or limited power of attorney over finances only. One disadvantage of a power of attorney is that it is no longer valid once the person becomes incapacitated or in some way loses the ability to make his or her own decisions. The answer is a durable power of attorney, which remains in effect even after the person becomes incapacitated.
Advance Health Care Directive
An Advance Health Care Directive specifies the type of medical treatment or lifesaving measures the conservatee is willing to receive if they become seriously ill. However, in order to create this document, the adult must still be competent to execute it. In situations where the adult is unable to execute an Advance Health Care Directive, California law allows the health care professionals, such as in the nursing home, to make medical decisions on behalf of those adults. In certain circumstances, the court must make medical decisions, or appoint someone specifically for that task. This commonly occurs when a hospital needs to make changes to the current medical treatment for someone who is now unable to give consent and there is no conservator appointed.
If you have questions regarding conservatorship, or any other elder law needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.